Oglala Sioux Tribe v. C & W Enterprises, Inc.
| Decision Date | 05 September 2008 |
| Docket Number | No. 07-3269.,07-3269. |
| Citation | 542 F.3d 224 |
| Parties | OGLALA SIOUX TRIBE, Plaintiff-Appellee, v. C & W ENTERPRISES, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Peter Capossela, argued, Walterville, OR, Brett Lee Shelton, on the brief, Rapid City, SD, for appellee.
Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM, District Judge.1
C & W Enterprises, Inc., appeals from a United States District Court for the District of South Dakota order permanently enjoining the Second Judicial Circuit Court of South Dakota ("state court") from confirming an arbitration award against the Oglala Sioux Tribe for lack of subject matter jurisdiction. We vacate the permanent injunction, and remand for further proceedings.
This case has a tortuous procedural history, encompassing no fewer than five different courts and one arbitral forum. While convoluted, this history is essential to our analysis.
The matter began in 2002, when C & W Enterprises, Inc. ("C & W"), itself a Native American-owned business, entered into four separate contracts with the Oglala Sioux Tribe ("Oglala Sioux" or "Tribe"). The contracts are referred to as the: (1) Multi-Gravel project; (2) Manderson to Wounded Knee project; (3) Cuny Table project; and (4) Base and Blotter project. Each contract obligated C & W to perform road construction on the Oglala Sioux Pine Ridge Indian Reservation.
The Oglala Sioux Tribe is federally-recognized. The contracts were funded by federal funds administered by the Bureau of Indian Affairs, pursuant to the Indian Self Determination Act, 25 U.S.C. § 450 et. seq.
The first three contracts contained explicit clauses waiving the Tribe's sovereign immunity. Each stated:
[T]he Oglala Sioux Tribe grants a limited waiver of its immunity for any and all disputes arising from this Contract, including the interpretation of the agreement and work completed or to be completed under the Contract; provided, however, that such waiver extends only to the Oglala Sioux Tribe and Transportation's specific obligations under the Contract; and further provided that such waiver shall extend only to the extent necessary to permit enforcement by the Subcontractor.
The three contracts also provided for Claims Resolution, stating:
The parties agree to bring any and all claims in the first instance to the Oglala Sioux Tribe Executive Committee for non-binding mediation, and thereafter to the South Dakota Federal District Court, and in the absence of Federal Court jurisdiction, the parties agree to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association in effect at the time of this Contract. In the event there exists no Federal Court jurisdiction and the parties proceed to arbitration, the award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with the applicable law in any court having jurisdiction thereof. In the event either party does not timely comply in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, said party waives its right to arbitration and judgment may be entered in the amount in dispute in accordance with applicable law in any court having jurisdiction thereof.
The Base and Blotter contract contained different language, and a different dispute resolution regime:
The Oglala Sioux Tribal Court will resolve all disputes arising under this contract. Tribal substantive laws regarding contracts shall apply to such disputes. If no tribal substantive laws regarding contracts exist, then the Tribal Court will apply South Dakota law as a guide.... The parties agree to bring any and all claims in the first instance to the Oglala Sioux Executive Committee for non-binding mediation presided over by a mutually agreed upon mediator. If mediation fails, then the aggrieved party may initiate a civil action in the Oglala Sioux Tribal Court.
The paving path did not run smooth. Disputes arose concerning C & W's performance and payment therefor. On August 31, 2005, the parties attempted to resolve their disputes through non-binding mediation by the Oglala Sioux Tribal Executive Committee. The attempts were unsuccessful.
On January 17, 2006, C & W filed a claim with the American Arbitration Association ("AAA") concerning all four contracts, seeking $6 million. The Tribe communicated to C & W its agreement to arbitrate, and although not required to do so, agreed to include the Base and Blotter project in the arbitration. The Tribe answered C & W's AAA claim, and particularly asserted its own counterclaims under the Base and Blotter contract. It sought damages of over $1.8 million for breach of that contract. The Tribe's answer did not assert sovereign immunity.
The Tribe moved to dismiss certain claims on grounds of sovereign immunity, but not with respect to the Base and Blotter contract. In support of that motion, the Tribe filed a memorandum with the arbitrator, acceding to him consideration of the Base and Blotter contract. The memorandum stated, in part:
In the Base and Blotter contract, the limited waiver of sovereign immunity extends only to the Oglala Sioux Tribal Court. The Tribe has not objected to the claimant's inclusion of the Base and Blotter claim in the Arbitration Demand, however, for the sake of expediency in resolving the dispute on its merits.
(Oglala Sioux's "Legal Mem. in Supp. of Motion to Dismiss Portion of Claim" 3, May 11, 2006 (see Complaint, Ex. K (06-CV-5063-KES)).) The Tribe fully participated in five months of arbitration — attending hearings, filing a position paper, and serving discovery requests.
On June 23, 2006, the Tribe apparently changed course. It moved the arbitrator to dismiss the Base and Blotter claims from arbitration, claiming sovereign immunity. Rule R-8(a) of the Construction Industry Arbitration Rules of the AAA ("AAA Rules"), however, confers upon the arbitrator the power to decide issues of jurisdiction and arbitrability. AAA Rule R-8(c) further provides:
A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection.
The arbitrator denied the motion, finding the Tribe's active participation in arbitrating the Base and Blotter contract waived its immunity.
On August 21, 2006, the Tribe filed its initial action in the United States District Court for the District of South Dakota. It sought to enjoin the arbitrator from hearing, among other things, claims related to the Base and Blotter contract. Oglala Sioux Tribe v. C & W Enterprises, Inc., No. 06-5063, 2006 U.S. Dist. LEXIS 61113, at *3 (D.S.D. Aug. 28, 2006). The district court dismissed that case for lack of federal jurisdiction, and this Court affirmed. Oglala Sioux Tribe v. C & W Enterprises, Inc., 487 F.3d 1129, 1130 (8th Cir.2007).
Following dismissal of the initial action, the arbitrator commenced a two-week arbitration in Sioux Falls, South Dakota, on August 30, 2006. The record does not disclose either party's objection to that location. On January 29, 2007, the arbitrator entered a final award of $1,250,552.58 in favor of C & W. Following this award, each party filed separate actions: C & W seeking to enforce the award; the Tribe seeking to contest it.
On January 29, 2007, the day of the final arbitration award, C & W filed an action in South Dakota state court to confirm the award. The action was filed pursuant to South Dakota's Uniform Arbitration Act, S.D.C.L. § 21-25A et. seq. The Tribe was served on February 26, 2007. When the Tribe declined to answer, C & W moved for default judgment. The Tribe, having opted against answering, defaulted; judgment was entered, on May 29, 2007. C & W sought to collect its state court judgment by obtaining executions on Oglala Sioux property located in South Dakota's Hughes and Fall River Counties. On July 10, 2007, the Tribe moved the state court to quash the executions. The action to quash ended on September 28, 2007, however, when the federal court issued the injunction presently before us.
The Tribe filed its own case in the Oglala Sioux Tribal Court, on April 30, 2007, seeking to vacate the arbitration award. C & W defended unsuccessfully, and the Tribal Court vacated the arbitral award, on July 26, 2007. On March 29, 2008, the Supreme Court of the Oglala Sioux Tribe affirmed the Tribal Court's decision vacating the award, but remanded the matter to the Tribal Court to permit C & W's discovery concerning the Tribe's consent to arbitrate the Base and Blotter contract.
The Tribe filed the present matter, on March 16, 2007, in the United States District Court for the District of South Dakota. The Tribe sought: (1) a declaratory judgment holding the South Dakota state court lacked jurisdiction to confirm or allow execution on the arbitral award; (2) an injunction barring the state court from proceeding in these matters; and (3) a declaration that the Oglala Sioux Tribal Court had exclusive jurisdiction to confirm or vacate the award; or (4) alternatively, that the district court vacate the arbitration award. On August 16, 2007, the Tribe moved the district court to stay C & W's state court action.
The district court consolidated the Tribe's motion for temporary relief with its action for declaratory judgment and permanent injunction, pursuant to Fed. R.Civ.P. 65(a)(2). On September 10, 2007, the district court found the state...
To continue reading
Request your trial
-
Religious Sisters Mercy v. Becerra
...to show actual success on the merits." Miller v. Thurston , 967 F.3d 727, 735 (8th Cir. 2020) (quoting Oglala Sioux Tribe v. C & W Enters. Inc. , 542 F.3d 224, 229 (8th Cir. 2008) ). Once the moving party shows actual success on the merits, a court "must then consider three factors to deter......
- Colombe v. Rosebud Sioux Tribal
-
Smith v. State Dakota
...key difference. A permanent injunction requires the moving party to show actual success on the merits[.]” Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir.2008) (citations omitted). “If a court finds actual success on the merits, it then considers the following factors ......
-
Am. Humanist Ass'n v. Baxter Cnty., CASE NO. 3:14-CV-3126
...with the First Amendment. See Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; Oglala Sioux Tribe v. C & W Enters., Inc. , 542 F.3d 224, 229 (8th Cir.2008).IV. CONCLUSIONIT IS THEREFORE ORDERED that Plaintiffs American Humanist Association's and Dessa Blackthorn's ......